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Mother-In-Law Shoots Son-In-Law; A Follow-Up

Published on April 6, 2012 by Justin L. Seekamp

by Justin L. Seekamp

In a recent post by myself, titled “Dealing With The Emotions of Divorce,” found here, I discussed the shocking chain of events involving Salvatore Miglino and his soon-to-be mother-in-law, Cheryl Hepner. As the earlier post discussed, Mr. Miglino was shot by Ms. Hepner when Miglino attempted to pick-up his minor son from Ms. Hepner’s residence in South Florida. Ms. Hepner’s daughter was, at the time, involved in a bitter divorce proceeding with Mr. Miglino and it seemed as though Ms. Hepner’s emotions had gotten the best of her. Well, to follow-up this interesting story, a recent article from the Sun-Sentinel.com revealed a recent hearing involving Mr. Miglino’s suit against Ms. Hepner for the shooting. The entirety of the story can be read here.

The article detailed that at a recent hearing a Broward County Judge, Judge Michael Usan, declined to set bail for Ms. Hepner who has been accused of attempting to kill Mr. Miglino. The event had been partially recorded on Miglino’s iPhone telephone. At the recent hearing Mr. Miglino and Ms. Hepner came face-to-face for the first time since the events of December 7^th, 2011 when the alleged attack occurred. At the hearing Ms. Hepner’s attorney urged Judge Usan to set reasonable bail for Hepner because Hepner posed a low risk for future violent or aggressive behavior. Hepner’s attorney also argued that the iPhone recoding was illegally obtained and should not be allowed to be used as evidence, a legal technique called suppressing the evidence. Judge Usan refused to rule with Hepner’s attorney on both issues. Instead, Judge Hepner allowed the audio recording to be played in court before Judge Hepner, the victim, the defendant and numerous members of her family, including Ms. Hepner’s daughter. The audio recording was played and most of those in the courtroom appeared to be shocked, as was reported, but, Hepner did not appear to have any sort of response to the playing of the audio recording.

Clearly, as was reiterated back in the original post in regards to dealing with the emotions of divorce, emotions play a large role in many dissolution of marriage proceedings. But, having a knowledgeable Florida family law attorney on your side will allow you to know that someone is fighting for your interests before the court of law. As always though, should you be either seeking to petition for dissolution of marriage or responding to being served with a petition for dissolution of marriage, finding a compassionate and competent Florida family law attorney will allow you to navigate the often confusing and emotionally draining divorce process.

Published in Divorce
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Split The Difference? Improper, Says Florida Court of Appeal

Published on April 2, 2012 by Justin L. Seekamp

by Justin L. Seekamp

When a lower trial court arrived at a valuation of a marital asset by simply splitting the difference between the valuations submitted by both parties as to the value of such a marital asset is improper. A recent opinion from Florida’s First District Court of Appeal supported this position. The opinion from the case can be found here.

The court came to this conclusion when the former Husband in the matter appealed the amended final judgment of dissolution of marriage from the lower circuit court. On appeal, the former husband challenged, among other things, the trial court’s equitable distribution of the parties’ assets and liabilities. The issue on this specific issue on appeal was the court’s valuation of a marital liquor store business which the court found, in its final judgment, to be valued at $425,000.00 with no explanation as to how it arrived at that value. The court of appeal stated, “In the amended final judgment, the trial court does not explain how it arrived at the $425,000 valuation, and no evidence was presented to support this valuation.” It seemed, to the court of appeal, that the value arrived at was the result of splitting the difference between the valuations that the parties had separately offered in regards to the liquor store business. In fact, the court of appeal stated, “It appears that the trial court simply ‘split the difference’ between the values presented by the parties. This was error.” The details, as presented by the court of appeal, were that the former husband’s expert valued the business at $256,500; the former wife and her mother testified that they overheard the former husband state that the business was worth $600,000 and that he had received a purchase offer in that amount. The court then found that splitting the difference between these two values made the property worth $428,250 which the court of appeal found was “close to the value assigned by the trial court.”

So, how then can a trial court avoid such error when dealing with a marital asset that the parties have substantially different valuations of? Well, according to the opinion and the other relevant Florida Court of Appeal decisions that the court of appeal cited in the opinion, in order to arrive a proper valuation, the lower trial court needs to base the arrived at valuation on competent and substantial evidence. Therefore, trial courts cannot simply “split the difference” but must, in order to be proper, establish a value of a certain marital asset or any other valuation based upon competent and substantial evidence. Potential ways to do so include the use of experts, property appraisers, independent appraisers, and the like. It is likely something that the parties to a divorce and their Florida attorney would have to provide the court if they sought to have their valuation entered into the final judgment of dissolution of marriage by the court.

In all, this recent opinion, if nothing else, establishes that when there are marital assets involved in a divorce it is safer to have competent and substantial evidence supporting your particular property value if the value assigned to that property is substantially different from that of the other party. As always though, should you be either seeking to petition for dissolution of marriage or responding to being served with a petition for dissolution of marriage, finding a compassionate and competent Florida family law attorney will allow you to navigate the often confusing and emotionally draining divorce process.

Published in Divorce
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Family Pets And Divorce

Published on March 9, 2012 by Justin L. Seekamp

by Justin L. Seekamp

What happens to the family pet when parties decide to break the bonds of marriage? In a recent article from Yahoo! News, this issue was touched on, the conclusion? When dealing with family pets, parties to a divorce are left to their own devices regarding how family pets will be dealt with due to the fact that family pets are treated like any other piece of property. The full article from Yahoo! News can be found here.

Much of the article and the information regarding this issue came from a series of interviews done with family law or matrimonial attorneys. The article began by citing to the fact that in 2006 survey, the 1,600-member American Academy of Matrimonial Lawyers, a quarter of respondents to a member conducted survey stated that pet custody cases had increased noticeably since 2001. What has caused the increase in pet-custody? Some experts believe that breakups in same-sex marriages, civil unions and domestic partnerships have caused the increase. But, the question remains, how are family pets dealt with when their respective “parents” are going through a divorce? In reality, pets are considered to be property in every state in these United States and therefore, when dealing with family pets, the parties to a divorce were often left to consider their family pets in the same manner as they would household furniture. But, in practice, stated a Ken Altshuler an attorney from Maine, “Judges are viewing them more akin to children than dining room sets. They are recognizing that people have an emotional attachment to their pets.”

But, due to the fact that there are no laws recognizing the legal standing of pets in a divorce, the divorcing parties are left to work out what to do with their pets on their own. The article then mentioned the pet custody arrangement of two individuals who were able to, in the end, work out shared custody, long-distance visitation and the process of introduction of their once family pets of new pets for their 8-year-old Daschund, Dailey. The couple had even to an agreement for a plan for their shared pet that included a daily plan, a vacation and holiday schedule, travel arrangements, doggie daycare, boarding, food, treats, grooming, vet care, moving and end-of-life decisions.

Clearly, as time is moving forward and the fact that family pets are becoming increasingly common, couples are likely going to have to come to such agreements regarding family pets. With the assistance of a competent Florida Family Law attorney hopefully this process can be made easier for all those involved.

Published in Divorce
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Unexpected Consequence Of Same Sex Marriage Bans

Published on March 6, 2012 by Justin L. Seekamp

by Justin L. Seekamp

Amending a state’s constitution to prevent same-sex marriage could end up having unmarried same and opposite couples face acts of domestic violence without the ability to obtain relief by the law. Sounds impossible, right? Wrong, well at least for a little while. In a recent article from North Carolina’s News Observer, found here, this same impossible situation was found to be all to true for residents of the state of Ohio for a period of time in 2003 and 2004.

The article focused on a proposed amendment due to be considered in the state of North Carolina that would effectively define marriage to exclude marriage or any other type of recognized civil union from being possible for same-sex couples through an amendment to North Carolina’s state constitution. The article then provided commentary that detailed the particular experience in Ohio during 2003-2004 that dealt with such an amendment to the state’s constitution.

From this discussion, it was revealed that in 2003, after a Massachusetts court found that the Massachusetts state constitution guaranteed marriage rights for same-sex couples, Ohio, amongst many other states, rushed to amend their respective constitutions to prevent same-sex marriage. In Ohio, the amendment passed quickly through the state Legislature and then on to voter approval. But, the problem arose because Ohio’s amendment included a sentence prohibiting recognition of “a legal status for relationships or unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” This sentence, seemingly innocuous, resulted in a series of confusing Ohio trial court decisions that ultimately led to Ohio’s highest court, the Supreme Court of Ohio, entering a ruling clarifying the intent of the amendment. Why? Well, there likely would not have been an issue until the public defender in Cuyahoga County, Ohio who represented a man accused of committing domestic violence against his live-in girlfriend asked a judge to throw out the case against his client. How? The public defender argued that since the new amendment in the constitution prohibited recognition of a special legal status for unmarried people in a marriage-like relationship, that domestic violence laws could not apply to live-in boyfriends and girlfriends. The court ruled in favor of the public defender’s argument and news quickly spread across the state of Ohio to other defense attorneys who made similar arguments. The result? A confusing patch-work of holdings and rulings interpreting the intent of the amendment leaving many victims of domestic violence without the ability to obtain relief from the judicial system which, in the end, was finally addressed by the Ohio Supreme Court which ruled that the amendment did not prevent domestic violence injunctions from being granted to unmarried couples.

Considering the fact that many states are facing a similar situation, the example of Ohio should serve as a cautionary tale regarding amending the constitution of a state.

Published in Domestic Violence
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Defense of Marriage Act Ruled Unconstitutional

Published on February 24, 2012 by Justin L. Seekamp

by Justin L. Seekamp

The Defense of Marriage Act, enacted by former President William Clinton, has been ruled unconstitutional as applied to the circumstances involving a lesbian couple who attempted to enroll in health insurance programs offered by the United States Office of Personnel Management. Details of the ruling were first mentioned in the Los Angeles Times but, were later reported locally in the Orlando Sentinel. The Orlando Sentinel story can be found here, in its entirety.

US District Court of Appeals, for the Ninth Circuit, Judge Jeffrey S. White entered the 43-page order finding that, as applied to the wife of Ms. Karen Golinski, an attorney for the US Ninth Circuit Court of Appeals, that the 1996 Defense of Marriage Act was unconstitutional. The complete ruling by Judge White can be found here. Commentators note that this is the first ruling since the administration of current President Barack Obama announced a year ago that it would no longer defend a law that it considered discriminatory and reflective of a long history of denying equal rights to gay and lesbian couples. Interestingly, because of the decision to not defend the law by the Obama administration and the United States Attorney General, Eric Holder, Jr., a conservative-dominated group known as Bipartisan Legal Advisory Group decided to pursue the case. In a previous hearing in December, attorneys for the Bipartisan Legal Advisory Group had argued that the Defense of Marriage Act was enacted to protect and nurture traditional opposite-sex marriage and they submitted evidence of “some fluidity” in the commitment of homosexuals to that identity, of being homosexual, and that the prior ruling of the 9^th Judicial Circuits rulings that homosexuality was “a defining and immutable characteristic.”

In his ruling, Judge White stated that “tradition alone” does not justify legislation that targets a specific group unfairly. Gay rights advocates applauded rights ruling and this sentiment was backed-up by a comment from Ms. Tara Borelli, a staff attorney for the national gay rights advocacy group Lambda Legal, who stated, “This ruling, the first to come after the Justice Department announced it would no longer defense this discriminatory statute in court, spells doom for DOMA.” Commentary from attorneys who defended the act did not respond to requests for commentary but most experts think that an appeal is likely to come.

Clearly, the Defense of Marriage Act is under scrutiny from those challenging the validity of the act and those who believe in the acts validity are strongly defending their beliefs. The jury is still out as to DOMA’s continuing validity but the story is one that we will surely continue to follow closely.

Published in Uncategorized
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NYC Mother Sues For $900 Trillion!!!

Published on February 20, 2012 by Justin L. Seekamp

by Justin L. Seekamp

In a news story of relevance outside of the particular realm of divorce and family law related matters in the state of Florida comes an interesting story first reported in the New York Post, here, of a mother’s decision to sue New York City’s Administration for Children’s Services for $900 trillion for removing her two sons from her custody.

The mother, Ms. Fausat Ogunbayo, is suing the Administration for Children’s Services (ACS) for the tremendous sum because, as revealed in court papers filed by Ogunbayo, who represents herself, in the United States District Court in Brooklyn, NY on January 30^th, Ms. Ogunbayo claims that her civil rights were violated when her two sons, now 16 and 13, were improperly placed in foster care in mid-2008 after ACS worker’s asserted that Ms. Ogunbayo had mental health problems that prevented her from properly caring for her minor children. Amongst other specific allegations, Ms. Ogunbayo states that she and her children had suffered, “over three years of terror, horror, grievous harm, time lost, substantial economic hardship and injuries” due to their separation. When the children were initially removed the City of New York claimed that Ms. Ogunbayo was mentally unstable and had refused treatment. Also that Ogunbayo suffered from hallucinations and delusions and that she often left her sons at home for extended periods while she was working. In her complaint filed on January 30^th, Ogunbayo refutes the allegations as a “huge lie.” Ogunbayo argues in her complaint that government officials “recklessly disregarded” her “right to family integrity.”

When reached for commentary on the high 15-figure payout, New York City’s legal department’s spokesperson stated, “It’s hard to even take seriously. There may be a case, which is for a court of law to decide, but that’s a made-up number.” While having one’s children ripped from their care is certainly traumatic, putting a price at $900 trillion is a bit excessive. To compare, the largest ever settlement by New York City to an individual is $18,278,000.00 which was awarded to a victim of the 2003 Staten Island dock crash who suffered paralyzing injuries. Additionally it is relevant to point out that the entire U.S. National Debt is $15 trillion.

Clearly, this case is one of mention simply because of the extreme amounts of money being sought as compensation. The events, if true, and Ms. Ogunbayo’s allegations, if deemed to be true by a court of law, are serious violations of a parents rights and seeking competent representation may be necessary to fight for your rights as a parent.

Published in Child Custody - Support
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Judge Orders Date For Husband Accused Of Domestic Violence

Published on February 14, 2012 by Justin L. Seekamp

by Justin L. Seekamp

Domestic violence is a serious issue but, sometimes, there is more to a story than the charges levied against the parties. A recent news story from South Florida revealed that a perceptive judge can take inventive approaches in situations when there may be a chance to save a marriage. The news story was detailed in the Sun-Sentinel and can be found here.

The story detailed the an alleged altercation between Plantation, Florida resident Joseph Bray and his wife. The “marital spat” began when Bray supposedly failed to wish his wife happy birthday and then escalated into allegations of Mr. Bray committing domestic violence against his wife. Bray was then taken into custody and then at his first appearance in court, Bray appeared before Broward County Judge, John “Jay” Hurley. Instead of locking Bray up or setting bond, Judge Hurley ordered Bray to treat his wife to dinner, a bowling date, and then to marriage counseling.

Judge Hurley was quoted as saying, “He’s going to stop by somewhere and he’s going to get some flowers, and then he’s going to go home, pick up his wife, get dressed, and take her to Red Lobster. And then after they have Red Lobster, they’re going to go bowling.” Appearing to recognize that some may take offense to his ruling, Judge Hurley then followed up by emphasizing that he would not have entered such an alternative type of order if the domestic violence charges against Bray were more serious or if Bray’s wife appeared to be injured or in danger of being harmed. Hurley stated, “It was a minor incident, in the court’s opinion, the court would not normally do that if the court felt there was some violence but this is very, very minor and the court felt that that was a better solution than other alternatives.” At the hearing Bray’s wife stated to Hurley, after Hurley had asked her if she was hurt or had any fear of her husband, that she was not hurt nor did she fear her husband. Additionally, Judge Hurley pointed to the fact that Bray had no prior arrests. After this line of questioning Judge Hurley entered his final order of, “Flowers, birthday card, Red Lobster, bowling…” additionally Hurley required the couple to attend marriage counseling within a week.

Again, domestic violence is always a serious situation and clearly Judge Hurley’s ruling was not the typical order entered and likely would have ruled else wise had the facts been different. Should you or a loved one ever face or fear facing domestic violence from the hands of another, having a Florida family law attorney acting on your behalf can guide you through the process both legally and emotionally.

Published in Domestic Violence
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Split The Difference? Improper, Says Florida Court of Appeal

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